TRAPPED BETWEEN TRAPPED BETWEEN ADMINISTRATIVE DETENTION, ADMINISTRATIVE DETENTION, PRISON AND FREEDOM-IN- PRISON AND FREEDOM-IN- LIMBO LIMBO Presentation by CHARLES GOSME (Ph.D. Presentation by CHARLES GOSME (Ph.D. Candidate at Sciences Po Law School) Candidate at Sciences Po Law School) CRIMMIGRATION CONFERENCE in COIMBRA, CRIMMIGRATION CONFERENCE in COIMBRA, PORTUGAL, 11 October 2012 PORTUGAL, 11 October 2012
INTRODUCTION COURT OF JUSTICE OF THE EU COURT OF JUSTICE OF THE EU (2011 rulings) (2011 rulings) EL DRIDI ACHUGHBABIAN EL DRIDI ACHUGHBABIAN PARTIAL DECRIMINALISATION OF PARTIAL DECRIMINALISATION OF ILLEGAL STAY ILLEGAL STAY
PERMISSIBLE TARGETS OF IMPRISONMENT PERMISSIBLE TARGETS OF IMPRISONMENT RESIDUAL CATEGORY ILLEGALLY STAYING ILLEGALLY STAYING THIRD-COUNTRY THIRD-COUNTRY NATIONALS NATIONALS
PART I : THREE SANCTIONS AGAINST ILLEGAL STAY PART I : THREE SANCTIONS AGAINST ILLEGAL STAY PART II : NON-REMOVABLE PERSONS AND THE COURT'S PART II : NON-REMOVABLE PERSONS AND THE COURT'S RESIDUAL CATEGORY OF ILLEGAL RESIDENTS RESIDUAL CATEGORY OF ILLEGAL RESIDENTS PART III : THE RESIDUAL CATEGORY TRAPPED BETWEEN PART III : THE RESIDUAL CATEGORY TRAPPED BETWEEN THE THREE EXCLUSIONARY SPACES OF THE THREE EXCLUSIONARY SPACES OF ADMINISTRATIVE DETENTION, PRISON, AND ADMINISTRATIVE DETENTION, PRISON, AND FREEDOM-IN-LIMBO FREEDOM-IN-LIMBO PART IV : CONVERGING FUNCTIONS OF THESE THREE PART IV : CONVERGING FUNCTIONS OF THESE THREE EXCLUSIONARY SPACES EXCLUSIONARY SPACES CONCLUSION : EU STATES VERSUS NON-COOPERATIVE EXHAUSTED-RETURNEES
PART I : PART I : THREE SANCTIONS THREE SANCTIONS AGAINST ILLEGAL STAY AGAINST ILLEGAL STAY
SANCTIONS AGAINST ILLEGAL STAY SANCTIONS AGAINST ILLEGAL STAY CRIMINAL CRIMINAL SANCTIONS SANCTIONS IMMIGRATION COLLATERAL IMMIGRATION COLLATERAL (national (national SANCTIONS SANCTIONS SANCTIONS SANCTIONS competence) competence) EXCLUSION FROM EXCLUSION FROM REMOVAL PRISON RIGHTS ATTACHED REMOVAL PRISON RIGHTS ATTACHED TO LEGAL RESIDENCE TO LEGAL RESIDENCE
COURT OF JUSTICE RULINGS COURT OF JUSTICE RULINGS SHIFTING THE NEXUS BETWEEN SANCTIONS SHIFTING THE NEXUS BETWEEN SANCTIONS OF REMOVAL AND IMPRISONMENT OF REMOVAL AND IMPRISONMENT IMPRISONMENT IMPRISONMENT 1) ILLEGAL RESIDENT SUBJECTED TO EVERY STAGE OF THE REMOVAL PROCEDURE 2) RELEASED FOLLOWING MAXIMUM PERIOD OF ADMINISTRATIVE DETENTION 3) NO JUSTIFIED GROUND OF NON-RETURN
PART II : PART II : NON-REMOVABLE PERSONS NON-REMOVABLE PERSONS AND THE COURT'S AND THE COURT'S RESIDUAL CATEGORY RESIDUAL CATEGORY OF ILLEGAL RESIDENTS OF ILLEGAL RESIDENTS
ILLEGALLY STAYING ILLEGALLY STAYING THIRD-COUNTRY NATIONALS THIRD-COUNTRY NATIONALS WHO CANNOT BE WHO CANNOT BE REMOVED REMOVED POLICY LEGAL PRACTICAL LEGAL PRACTICAL POLICY OBSTACLES OBSTACLES OBSTACLES OBSTACLES OBSTACLES OBSTACLES Eurostat (2009) : 311,205 out of 563,995 removal orders not carried out Eurostat (2009) : 311,205 out of 563,995 removal orders not carried out Eurostat (2010) : 280,800 out of 505,140 removal orders not carried out Eurostat (2010) : 280,800 out of 505,140 removal orders not carried out
ILLEGALLY STAYING ILLEGALLY STAYING THIRD-COUNTRY NATIONALS THIRD-COUNTRY NATIONALS WHO CANNOT BE WHO CANNOT BE REMOVED REMOVED NEXUS ? REGULARISATION, POSTPONEMENT OF REMOVAL, REGULARISATION, POSTPONEMENT OF REMOVAL, ADMINISTRATIVE DETENTION ADMINISTRATIVE DETENTION
SPECTRUM BETWEEN ILLEGAL AND LEGAL STAY LEGAL RESIDENCE LEGAL RESIDENCE (-HYBRID LEGAL/TOLERATED (-HYBRID LEGAL/TOLERATED STATUS) STATUS) -FORMALLY POSTPONED- -FORMALLY POSTPONED- REMOVAL REMOVAL TOLERATED TOLERATED - INFORMALLY RESIDENCE - INFORMALLY RESIDENCE POSTPONED-REMOVAL POSTPONED-REMOVAL -EXHAUSTED- -EXHAUSTED- RETURN RETURN ILLEGAL RESIDENCE ILLEGAL RESIDENCE
DISCRETIONARY DEFAULT : FORMAL DISCRETIONARY DEFAULT : FORMAL REGULARISATION POSTPONEMENT OF REMOVAL REGULARISATION POSTPONEMENT OF REMOVAL NON-REMOVABLE NON-REMOVABLE ON ON LEGAL LEGAL GROUNDS GROUNDS DEFAULT : UNLAWFUL DEFAULT : UNLAWFUL INFORMAL POSTPONEMENT OF REMOVAL REMOVAL INFORMAL POSTPONEMENT OF REMOVAL REMOVAL
DISCRETIONARY DISCRETIONARY DISCRETIONARY DISCRETIONARY REGULARISATION POSTPONEMENT OF REMOVAL REGULARISATION POSTPONEMENT OF REMOVAL NON-REMOVABLE NON-REMOVABLE ON ON PRACTICAL PRACTICAL GROUNDS GROUNDS EXHAUSTION OF EFFECTIVE EXHAUSTION OF EFFECTIVE RETURN PROCEDURE REMOVAL RETURN PROCEDURE REMOVAL
NON-REMOVABLE NON-REMOVABLE ON ON PRACTICAL PRACTICAL GROUNDS GROUNDS COOPERATIVE COOPERATIVE NON-COOPERATIVE COOPERATIVE NON-COOPERATIVE RETURNEES RETURNEES RETURNEES RETURNEES RETURNEES
RESIDUAL CATEGORY RESIDUAL CATEGORY = NON-COOPERATIVE NON-COOPERATIVE EXHAUSTED-RETURNEES EXHAUSTED-RETURNEES
DIFFERENT ENTITLEMENTS OF LEGAL RESIDENTS, DIFFERENT ENTITLEMENTS OF LEGAL RESIDENTS, TOLERATED RESIDENTS AND EXHAUSTED-RETURNEES TOLERATED RESIDENTS AND EXHAUSTED-RETURNEES FAIR TREATMENT FAIR TREATMENT LEGAL RESIDENTS LEGAL RESIDENTS (EU TREATY GOAL) (EU TREATY GOAL) POSTPONED-REMOVAL POSTPONED-REMOVAL PRINCIPLES OF EMERGENCY PRINCIPLES OF EMERGENCY STATUS STATUS HEALTH CARE, FAMILY UNITY, HEALTH CARE, FAMILY UNITY, ACCESS OF MINORS TO EDUCATION ACCESS OF MINORS TO EDUCATION (RETURN DIRECTIVE) (RETURN DIRECTIVE) NO MENTION IN RETURN EXHAUSTED-RETURN NO MENTION IN RETURN EXHAUSTED-RETURN DIRECTIVE OR ANY OTHER STATUS DIRECTIVE OR ANY OTHER STATUS LEGISLATION LEGISLATION
PART III : PART III : THE RESIDUAL CATEGORY TRAPPED THE RESIDUAL CATEGORY TRAPPED BETWEEN THE THREE BETWEEN THE THREE EXCLUSIONARY SPACES OF EXCLUSIONARY SPACES OF ADMINISTRATIVE DETENTION, PRISON, ADMINISTRATIVE DETENTION, PRISON, AND AND FREEDOM-IN-LIMBO FREEDOM-IN-LIMBO
EXHAUSTED-RETURNEES ALREADY MOST VULNERABLE CATEGORY OF NON-REMOVABLE PERSONS REPEATED CYCLES OF ARREST- DETENTION-RELEASE CIMADE 2010 Report : many persons CIMADE 2010 Report : many persons successively placed in detention between 5 and successively placed in detention between 5 and 15 times 15 times FREEDOM IN A LIMBO OF EXCLUSION FROM REGULARISATION AND FORMAL TOLERATION European Court of Justice KADZOEV case
COURT OF JUSTICE RULINGS REFLECT TREND IN COURT OF JUSTICE RULINGS REFLECT TREND IN CERTAIN EU STATES WHERE ILLEGAL STAY CAN LEAD CERTAIN EU STATES WHERE ILLEGAL STAY CAN LEAD TO IMPRISONMENT TO IMPRISONMENT TREND IN RECENT YEARS TOWARDS FOCUSING TREND IN RECENT YEARS TOWARDS FOCUSING PROSECUTIONS ON ILLEGAL RESIDENTS WHO PROSECUTIONS ON ILLEGAL RESIDENTS WHO HAMPER THEIR REMOVAL PROCEDURE HAMPER THEIR REMOVAL PROCEDURE France : « penal guidelines » circulars France : « penal guidelines » circulars adopted in 2006 and 2011 adopted in 2006 and 2011 UK : Legal Services Commission, Simple UK : Legal Services Commission, Simple cautions for foreign national offenders: pilot cautions for foreign national offenders: pilot policy statement , 29 November 2010 policy statement , 29 November 2010 Germany : EMN Contact Point's Response to Ad Germany : EMN Contact Point's Response to Ad Hoc Query Hoc Query
FRENCH CASE-STUDY Administrative detention Prison Administrative detention Prison Freedom-in-limbo Freedom-in-limbo
CIMADE REPORT : 33692 illegal residents placed in CIMADE REPORT : 33692 illegal residents placed in administrative detention centres in 2010 administrative detention centres in 2010 CIMADE REPORT : 24018 persons left administrative CIMADE REPORT : 24018 persons left administrative Detention in 2010 Detention in 2010 Justice Dept Statistics (prov.) : 3700 persons convicted Justice Dept Statistics (prov.) : 3700 persons convicted for the crime of illegal entry/stay in 2010 for the crime of illegal entry/stay in 2010
FRENCH CASE-STUDY Administrative detention Prison Administrative detention Prison CIMADE REPORT : CIMADE REPORT : 634 persons 634 persons In 2010 In 2010 out of 24018 who left out of 24018 who left Prosecuted for hampering removal Prison sentences ranging Prison sentences ranging from 1 to 4 months from 1 to 4 months
FRENCH CASE-STUDY Foreign prisoners Foreign prisoners under an obligation to Administrative detention under an obligation to Administrative detention leave leave CIMADE REPORT : CIMADE REPORT : 1070 persons 1070 persons in 2010 in 2010 in France in France 50% chance 50% chance Administrative detention Fleury Mérogis Prison Administrative detention Fleury Mérogis Prison 50% chance 50% chance Release Release
FRENCH CASE-STUDY Administrative detention Prison Administrative detention Prison Freedom-in-limbo Freedom-in-limbo WEAK MECHANISMS FOR REGULARISING AND FORMALLY WEAK MECHANISMS FOR REGULARISING AND FORMALLY TOLERATING PERSONS WHO CANNOT BE REMOVED ON TOLERATING PERSONS WHO CANNOT BE REMOVED ON PRACTICAL GROUNDS PRACTICAL GROUNDS A CRIMINAL RECORD OFTEN ACTS AS A DISQUALIFIER A CRIMINAL RECORD OFTEN ACTS AS A DISQUALIFIER UNDER BOTH REGULARISATION MECHANISMS AND UNDER BOTH REGULARISATION MECHANISMS AND PROGRAMMES PROGRAMMES
FRENCH CASE-STUDY 2007 CIMADE Report : narrative of M.J. REMOVAL TO AD FIL AD AD FIL AD ALGERIA FIL P AD P FIL P AD P AD FIL FIL AD FINAL AD FIL FIL AD FINAL RELEASE RELEASE
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